At long last, the Fifth Circuit finally had to address whether
a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without
remuneration.After rejecting similar
arguments raised by defendants on plain error review, the panel resolved this
question in Martinez-Lugo’s favor, albeit by a split panel.

Martinez-Lugo’s conviction was under Georgia Code Annotated
section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).In Moncrieffe,
the Supreme Court held that the conviction was not an aggravated felony—illicit
trafficking in a controlled substance, defined in part as a felony under the Controlled
Substance Act (CSA)—because the CSA treats distribution of a small amount of
marijuana for no remuneration as a misdemeanor.

Section 2L1.2 does not define a DTO other than in the
Application Notes, and the Application Note definition does not refer to the
CSA.So, the holding of Moncrieffe does not control.Nevertheless, the majority relies on Moncrieffe’s language that “the everyday
understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial
dealing.” Since the Application Note
definition of DTO, which includes “possession . . . with intent to distribute”
would conflict with the common understanding of the term “trafficking” if distribution
did not require remuneration, the panel only applies the language of the §
2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that
could include giving away marijuana cannot support the 16-level enhancement.

Judge Costa dissents, urging the “straightforward result”
that flows from the § 2L1.2 Application Note definition of a DTO.Since Martinez-Lugo was convicted of possession
with intent to distribute, Judge Costa maintains the 16-level enhancement
applies.

Franco-Casasola
was convicted under the export violation statute, 18 U.S.C. § 554(a), for
buying, receiving, or concealing “merchandise, articles and object”—to wit:
five semi-automatic pistols—knowing they were intended for export contrary to
the Arms Export Control Act, 22 U.S.C. § 2778(b)(2), and the International
Trafficking in Arms Regulations, 22 C.F.R. §§ 121.3, 123.1, and 127.1.The question is whether § 554(a) is divisible
such that a court can look to the elements of those arms export and trafficking
statutes and regulations to determine whether Franco-Casosola’s conviction is
an aggravated felony.If § 554(a) is
indivisible, the conviction would not be an aggravated felony.

A divided
panel finds that § 554 is divisible and that, under the modified categorical
approach, Franco-Casasola’s conviction is the aggravated felony of illicit
trafficking in firearms.Section 554, in
part, makes it unlawful to fraudulently or knowingly buy, receive, conceal, or
facilitate the transportation, concealment or sale of“any merchandise, article, or object” from
the United States “contrary to any law or regulation of the United States.”

The panel
substitutes this published decision for an unpublished one, attempting to
explain Descamps in a manner that
supports its finding that § 554 is divisible. The majority essentially finds that the elements
of Franco-Casasola’s conviction included unlawful exportation of defense
articles, which the majority finds to be illicit trafficking in firearms. The majority recognizes that it has “gone one
step further than the Supreme Court has had to so far” in terms of the modified
categorical approach but attests that it has “not strayed from the path it has marked.”

Judge
Graves, in dissent, criticizes the majority’s analysis and casts its “one step”
as a giant leap.Simply put, Judge
Graves finds that the phrase “any law or regulation of the United States” is
not an “explicitly finite list” as required by Descamps to apply the modified categorical approach.Further, since § 554(a) prohibits buying,
selling, and other activities regarding “merchandise, article[s], or
object[s],” the conviction cannot be narrowed to illicit trafficking in firearms.He also disagrees with the majority’s conclusion
that the elements of the “law or regulation of the United States” cited in the
indictment would necessarily be elements of the § 554(a) offense.

Absent Proof to the Contrary, Government Does Not Have to Prove No Other Charging Document Exists to Narrow Conviction Under Modified Categorical Approach

Castellon-Aragon
challenged the 12-level enhancement for his drug conviction, arguing that the
Government presented insufficient evidence that his conviction under the broad
statute, California Health and Safety Code section 11378, was for possession of
methamphetamine for sale.The panel
rejects this argument largely due to the plain-error stature of the case and
the absence of any evidence that Castellon-Aragon did not plea to the criminal
complaint.The criminal complaint refers
to methamphetamine as the basis for his conviction.The district court did not plainly err by “failing
to require the Government to prove a negative: that no superseding charging instrument
was filed such that Castellon-Aragon might have pled guilty to an offense that
didn’t specify methamphetamine[.]”

This
decision leaves undisturbed the analysis of the unpublished decision upon which
Castellon-Aragon relied: United States v.
Lopez-Cano, 516 F. App’x 350 (5th Cir. 2013) (unpublished).In Lopez-Cano,
the error was preserved.The panel held
that certain California court documents were not proper Shephard documents because they were prepared by the court and not
by a judge.The panel also held that the
complaint was not a Shephard-approved
document because Lopez-Cano ultimately pled to a subsequently issued
information that did not specify the drug was methamphetamine.

Previously Deported Noncitizen Apprehended at Port of Entry While Leaving the United States is “Found In” Under § 1326

Quezada
Rojas was on a bus headed into Mexico when the bus was stopped by U.S. Border
Patrol agents conducting inspections of outbound traffic.Upon questioning, Quezada Rojas admitted that
he was previously deported.

In his Rule
29 motion and on appeal, Quezada Rojas argued that he was neither “found” nor “in”
the United States at the time of arrest.He argued that “found,” as used in § 1326, requires an alien to be
discovered, and he was not discovered or found by immigration authorities since
he voluntarily approached the port of entry. See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir.
2000). The panel rejected that argument, limiting
the voluntariness precedent to aliens seeking to enter not exit the United
States.Quezada Rojas also argued that
he was not “in” the United States because he was not free from official restraint.The panel disagreed, stating that the Fifth
Circuit has never explicitly adopted the doctrine of official restraint and
that, even if it did, Quezada Rojas would not fall within the “official
restraint” parameters since he was leaving the United States after having
worked in Colorado free from restraint.

So, noncitizens
with prior removal orders who are apprehended at the border while trying to
return to their home countries will first have to spend months or years in a
BOP facility, at least so long as prosecutors think such prosecutions are a good use of resources.